Q: I am on the board of a nonprofit preschool in a county-owned building and we have just learned that our lease expired nearly two decades ago. This is an old building, but we have been declared safe by the company we hired to do our mold report. The county is refusing to show us their mold report, claiming attorney-client privilege. The county is trying to get us to vacate the building to do remediation of mold for an undetermined amount of time, but will not share with us any information proving unsafe conditions exist. I was advised to file a CPRA request letter but am unclear to whom it should be sent. Advice? We would like to respond to the county today with the public records request as an attachment.
A: At the outset, State and local agencies are subject to the California Public Records Act (CPRA). Under the CPRA, public records — which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Cal. Gov. Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.
The California Public Records Act (CPRA) incorporates within its exemptions the protections of the California Evidence Code. Cal. Gov. Code § 6254(k). These protections include the attorney-client privilege. In the CPRA context, courts have held that the attorney-client privilege applies to communications made within the scope of the attorney-client relationship even if the communication does not relate to pending litigation—including legal advice when no litigation is threatened. Roberts v. City of Palmdale, 5 Cal. 4th 363 (1993). However, it is not clear that this exemption would necessarily apply to a mold report prepared by a third party. If the report was not “specifically prepared for use in litigation,” the attorney-client privilege may not exempt the record from disclosure. City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1420 (1995).
The CPRA also contains a “catch-all” exemption, which the county might also invoke here. A record need not be disclosed if the agency can demonstrate that “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Cal. Gov. Code § 6255(a) (emphasis added). This exemption is broad and routinely invoked by public agencies in denying access to public records, but it often does not justify non-disclosure, as the agency must set forth facts showing that the public’s interest in not releasing the documents clearly outweighs the interest in disclosure—the agency’s own interest in nondisclosure is not considered. Coronado Police Officers Assn. v. Carroll, 106 Cal. App. 4th 1001, 1015-1016 (2003).
To obtain this record, a good first step would be to submit a written request to the county making clear that you are requesting this record pursuant to the CPRA. The county then bears the burden of establishing a legal justification for withholding the record. Cal. Gov. Code § 6255. Further, an agency denying a public records request must not only identify an exemption but must also give its reasoning why the exemption applies. See Cal. Gov. Code § 6253(c) (agency “shall promptly notify the person making the request of the determination and the reasons therefor”) (emphasis added). Sample text for drafting your request can be found at the First Amendment Coalition’s website here.
Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.